“I wanted to stop the threat.” That was Kyle Rittenhouse’s description of his actions to Wisconsin prosecutor Thomas Binger when questioned about his intent on the night of August 25, 2020.
The statement by the 18-year old defendant asserts the “privilege” of self-defense under Wisconsin law. Particularly:
939.45 Privilege. The fact that the actor’s conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. Any of these circumstances can give rise to privilege defense:
(2) When the actor’s conduct is in defense of persons or property under any of the circumstances described in s. 939.48 or 939.49;
This refers in turn to the following section of Wisconsin law.
939.48 Protection of yourself and the defense of others
(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. Actors may only use or threaten force to stop or end interference. Actors may not use force that is likely or intended to cause great bodily injury or death unless they believe such force to be necessary in order to avoid imminent death or great bodily damage to themselves or their family.
Mr. Rittenhouse’s defense is that he used what he, in the moment of threat, reasonably believed to be necessary to terminate that threat. Additional evidence from the Rittenhouse trial supports Kyle’s assertion that he was actually under threat at the moment he fired his gun. And so it’s up to the jury to decide if his actions meet the measure of privilege excusing his actions under Wisconsin law.
Well not quite.
It’s clear that Binger tried to find a method to cancel Rittenhouse’s privilege. This was evident from the manner in which he was questioned by Binger.
In this section, Wisconsin law codifies the loss of privilege due provocation.
939.48 (2) Provocation affects the privilege of self-defense as follows:
(1) A person engaged in illegal conduct that is likely to cause others to attack him/her is not eligible to the privilege to self-defense. However, the attacker who is involved in such an attack can reasonably consider himself or herself in imminent danger of great bodily injury or death. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) Provocation can be used to regain the privilege.
(c) No one is entitled to the right to self-defense privileges if they provoke an attack by unlawful or lawful conduct.
In this section (2), you will see that there are legal tests to establish if the individual reasonably believed they were at risk per section (2) (a), or failed attempt to withdraw as per section (2) (b). It is clear that this person believed they were in imminent danger and attempted to withdraw.
Provocation argument (2)(c) is therefore an excuse for killing.
Prosecutor Binger at first gets himself into some legal hot water attempting to infer that Rittenhouse’s silence is incriminating. The judge slaps the prosecution’s face hard on this ploy, pointing out that is a serious breach of a defendant’s right to remain silent. This is something that should never be ignored. The breach is fiery enough that Rittenhouse’s attorney threatens to call for a mistrial due to prosecutorial overreach. My colleague Nick Arama covers this development specifically in, “Rittenhouse Defense Torches the Prosecution, Moving for Mistrial With Prejudice.”
Binger next tries to infer that Rittenhouse’s choice of the AR-15 as his firearm was a provocative act, therefore disqualifying privilege. The two go back and forth about the choice of the weapon and Kyle’s understanding of the lethality of the weapon, which in my opinion the prosecutor overly inflated to the point of injuring his own credibility as a technical argument. The purchase of the AR-15. How the AR-15 was purchased.
But the line of questioning got bogged down as Binger tried to rattle Rittenhouse’s nerves and trip him up. While the 18-year-old was cool, the questions were causing some problems for the prosecutor. The judge eventually stopped the line of questioning, reminding the jury that none of what they just heard is material to the case and that he will instruct the jury as to what elements of Wisconsin law will apply to their decision, saying only that “ignorance of the law is not an excuse,” an admonition I felt was poignantly aimed more at the questioner than the witness.
Binger then tried to argue that Rittenhouse playing the first-person shooter video game “Call of Duty” created of a mindset of premeditated and provocative intent to kill. Invoking Wisconsin law 939.49(2)c, this is clear evidence that Kyle was trying to create an excuse to cause injury. But Rittenhouse’s responses to Binger are such that Kyle is clearly confused and does not follow the line of argument that the prosecutor is attempting. I believe a jury watching this exchange would also conclude that this tactic was unsuccessful.
Overall, I would not say that the prosecutor succeeded in making a case for provocation by excuse to kill under Wisconsin 939.48 (2)(c) that would eliminate Rittenhouse’s assertion of self-defense privilege.
I think Kyle won that one and that my colleague Bonchie’s piece, “The Prosecution Absolutely Wets the Bed While Cross-Examining Kyle Rittenhouse”, is about the right assessment of the day.
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